Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.in Re: United Chair, Petitioner, 21 F.3d 420 (1st Cir. 1994)

Petitioner seeks a writ of mandamus directing the district court to set aside its order, pursuant to Fed. R. Civ. P. 42(b), separating the trial of the claims brought by plaintiffs against petitioner from the third party claims brought by petitioner for contribution and indemnity.

To be entitled to the writ, a petitioner must, inter alia, "ordinarily demonstrate that something about the order, or its circumstances would make an end-of-case appeal ineffectual or leave legitimate interests unduly at risk." In re Pearson, 990 F.2d 653, 656 (1st Cir. 1993) (quoting In re Recticel Foam Corp., 859 F.2d 1000, 1005-06 (1st Cir. 1988)). Petitioner has failed to show make such a showing.

The order for separate trials, rather than ending petitioner's right to pursue its claims against the third party defendants, establishes petitioner's right to a separate trial and judgment. See 6 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 1463, at 473 (1990). Furthermore, unless a lesser judgment is certified by the court, there will be no final judgment until all the issues in the whole case have been determined. Fed. R. Civ. P. 54(b). In either case, upon entry of final judgment, petitioner has the right to appeal the grant of separate trials and to secure a new trial should the separation prove to have been an abuse of discretion. See, e.g., Franchi Constr. Co. v. Combined Ins. Co., 580 F.2d 1, 6-8 (1st Cir. 1978) (ordering new trial upon finding that grant of separate trial was abuse of discretion). The fact that a separate trial will entail delay in any possible recovery against the third party defendants and more burdensome litigation for petitioner is insufficient, by itself, to justify the remedy of mandamus. See In re Pearson, 990 F.2d at 661.

Petitioner's request for a writ of mandamus is denied.¹